NATIONAL GUARD OFFICERS -- ENLISTED MEN AND CIVILIANS -- LIABILITY UNDER FINANCIAL RESPONSIBILITY ACT

NATIONAL GUARD OFFICERS -- ENLISTED MEN AND CIVILIANS -- LIABILITY UNDER FINANCIAL RESPONSIBILITY ACT

Officers and enlisted men on active duty in the Militia are not liable for accidents and the Financial Responsibility Act does not apply.

Civilian employees are not protected by Militia Act.  The National Guard, as a department of state, is not eligible as self-insurer under Financial Responsibility Act.

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                                                                   March 3, 1950

Lilburn H. Stevens
Brigadier General, WNG
The Adjutant General
Camp Murray
Fort Lewis, Washington                                                                                                              Cite as:  AGO 49-51 No. 232

Dear Sir:

            We acknowledge receipt of your request for our answers to the following questions:

                 "a. Are enlisted men of the Washington National Guard or civilian employees of the Military Department driving federally owned motor vehicles issued to the State of Washington for military purposes personally liable for any property damage or personal injury incident to their driving said vehicle?

                 "b. Are persons referred to in a, above, subject to loss of their drivers license for failure to deposit security to satisfy possible judgments, under the provisions of Section 31b, Chapter 212, Laws of 1949, in connection with property damage or injury inflicted while driving federal owned National Guard motor vehicles, in view of the fact that these are federal owned vehicles, not covered by Property Damage and Personal Liability Insurance?  The Federal Government does not admit any liability except when they are used during the period of Field Training Camp, each year.

                 Information is further requested as to whether judgments against the State (Section 889, Remington's Revised Statutes of Washington) are paid out of funds appropriated for the operation of the Department involved in the litigation or from otherwise unappropriated funds in the State Treasury.

             [[Orig. Op. Page 2]]

            You further inferentially ask a question in the last paragraph:

                 "If judgments are paid out of any unappropriated funds in the State Treasury, it would then appear that the State would be considered in the same status as a Property Damage and Personal Injury Insurance Company, and that the State Military Department would come under the provisions of Section 31-d(4), Chapter 212, Laws of 1949, as a self-insurer for the several thousand federal motor vehicles issued to the Military Department of the State."

            The conclusions reached are summarized as follows:

            a. Officers and enlisted men of the Militia of Washington when operating automobiles owned by the state or federal government in active service and in line of duty are exempt from criminal or civil liability and are not liable for property damage or personal injury occurring while driving said vehicles.  Civilian personnel are not protected from said liability.

            b. The fact that said vehicles are not insured has no bearing on the exemption of officers and enlisted men; there being no owner's insurance protection means that civilian operators would be required to furnish security, there being no protection otherwise.

            Except where provisions are made for special funds from which judgments vs. the state may be satisfied, as in condemnation proceedings, their payment is provided for by special act of the legislature and they are paid by the state auditor from the general fund of the state rather than from the funds of a particular department.  Inasmuch, however, as the legislature could refuse to provide for any of said judgments, or could repeal the acts providing for suit vs. the state in tort, it is doubtful that a state department could qualify as self-insurer under the Financial Responsibility Act.

                                                                     ANALYSIS

            With respect to officers and enlisted men in active duty in the State Militia, your question is controlled by section 13, chapter 130, Laws of 1943 (8603-13 Rem. Supp. 1943) which reads in part as follows:

             [[Orig. Op. Page 3]]

                 "Members of the Militia ordered into active service of the State by any proper authority shall not be liable civilly or criminally for any act or acts done by them while on such duty nor shall any action lie against any officer or enlisted man for any acts done by him in line of duty by virtue of any order which may thereafter be held invalid by any civil court. * * *"

            and said persons so qualifying would not be subject to the provisions of the Financial Responsibility Act of 1939, chapter 158, Laws of 1939, as amended by chapter 211, Laws of 1949, and their operator's license therefore would not be subject to suspension (6600-103 et seq. Rem. Supp. 1941 and 1949).

            The Financial Responsibility Act, however, does not contain exemptions, the military code does not cover civilian employees in the statutory presumptions therein provided, and said civilians are not protected.  It therefore follows that even though one might be driving a state or federal owned vehicle pursuant to his duties, when he has an accident he is subject to all of the provisions of said Financial Responsibility Act.

            The fact that the federal government may not assume any liability does not change the effect of the act on said civilian employee who has an accident while driving a federally owned vehicle loaned or assigned to the State Militia, except that he is also deprived of the protection afforded by the provision of section 31-d of the Financial Responsibility Act.

            Relative to your question and inferences as to judgments against the state, said judgments, unless a special fund is provided such as in eminent domain, are examined by the legislature, special acts providing payment therefor are enacted, and they are then satisfied from the general fund pursuant to section 4, chapter 95, Laws of 1895 (Rem. 889).

            The administrative head of the National Guard and Militia does not possess such a special fund, he cannot guarantee that either the federal government or the state legislature will provide funds for the satisfaction of any judgments arising from an accident involving the Militia,  [[Orig. Op. Page 4]] and it is therefore probable that the Director of Licenses would not find said department acceptable as self-insurer under the provision of sub section 31-m, 1 and 2, section 1, chapter 211, Laws of 1949,supra, (6600-131-m, 1 and 2 Rem. Supp. 1949).

Yours very truly,

SMITH TROY
Attorney General

PHILIP W. RICHARDSON
Assistant Attorney General